The Federal Court has certified what might be the most important (and least discussed) issue in Canadian immigration law. In Qin v. Canada, the Court asked: What standard of review is applicable to a visa officer’s interpretation of the Immigration and Refugee Protection Regulations, SOR/2002-227 and to the officer’s assessment of an application under the Immigration and Refugee Protection Regulations, SOR/2002-227? The answer to this question will have profound implications regarding the certainty applicants can have when they submit applications, and when counsel provide immigration advice. If the answer is the correctness standard, then a visa officer’s interpretation of the law will either be correct or not. If the answer is the reasonableness standard, then the courts will show considerable deference to how individual visa officers interpret the law, and it is possible that many different, acceptable interpretations of the same law will emerge. I have previously blogged on the difficulty that citizenship applicants face when determining what constitutes “residency” for the purpose of meeting the “three years out of four” rule. If the Federal Court of Appeal answers that the reasonableness standard applies to a visa officer’s interpretation of the Regulations, then it is possible that this confusion will spread to other area … Read More
Applying for a Stay of Removal in Superior Court
Generally, if an applicant in Canada whose request to the Canada Border Services Agency to defer removal is unsuccessful, and the individual then wants to obtain a judicial stay of removal, the appropriate forum is the Federal Court of Canada. In Anthonipillai v. Minister of Public Safety and Emergency Preparedness, 2013 ONSC 1231, the appellant unsuccessfully sought a stay of removal in Federal Court. He then took the rather novel approaching of trying again in Ontario Superior Court (the “ONSJ“). In dismissing the application, the ONSJ noted that the Supreme Court of Canada has declared that Canada’s Parliament has created a “comprehensive scheme for the review of immigration matters, with the Federal Court as an effective and appropriate forum.” Justice Goldstein also found that Federal Court judges are better equipped than provincial court justices to deal with the complex area of immigration law, as Federal Court judges deal with immigration issues on a daily basis. As such, unless an applicant raises a constitutional matter, the Federal Court has the exclusive jurisdiction to issue remedies regarding the decisions of visa and border officers. Even where there is a constitutional issue, a provincial or superior court is unlikely to rule favourably with an … Read More
Supreme Court Clarifies Elements of Conspiracy
On March 1, 2013, the Supreme Court of Canada (the “SCC“) in R v. J.F., clarified the elements of the offence of conspiracy. The decision has immigration implications because people who have been convicted of conspiracy may be inadmissible to Canada. Section 465 of Canada’s Criminal Code criminalizes the offence of conspiracy. Conspiracy is a form of inchoate liability. In other words, the actual result of the conspiracy need not occur for someone to be convicted under s. 465. For example, a person can be convicted of “conspiracy to commit murder” even if the murder does not occur. Furthermore, members in a conspiracy need not personally commit, or intend to commit, the offence which each has agreed should be committed. Any degree of assistance in the furtherance of the unlawful object can lead to a finding of membership as long as agreement to a common plan can be inferred and the requisite mental state has been established. Aiding or abetting the formation of an agreement between conspirators amounts to aiding or abetting the principals in the commission of the conspiracy. Party liability is limited, however, to cases where the accused aids or abets the initial formation of the agreement, or aids or abets a new … Read More
New 2013 Federal Skilled Worker Class (Updated – April 18, 2013)
(On August 17, 2012, Citizenship and Immigration Canada (“CIC”) announced that it would be overhauling Canada’s Federal Skilled Worker Class (“FSWC”). Numerous program announcements have been introduced since then. Each time we have revised and updated this blog post. The most recent update was on April 18, 2013.) In brief, the FSWC will now focus on youth and language fluency. It will also require foreigners to have their educational credentials assessed by designated agencies. The Arranged Employment Opinion process is being abolished. The program will continue to feature limits on the number of occupations which can apply, and there will be caps. The revised program will begin accepting applications on May 4, 2013. Eligible Occupations List For those not applying under the Arranged Employment stream or the PhD Stream, applicants must have at least one year of continuous work experience in one of 24 occupations (the “Eligible Occupations Stream”). The Eligible Occupations are: 0211 Engineering managers 1112 Financial and investment analysts 2113 Geoscientists and oceanographers 2131 Civil engineers 2132 Mechanical engineers 2134 Chemical engineers 2143 Mining engineers 2144 Geological engineers 2145 Petroleum engineers 2146 Aerospace engineers 2147 Computer engineers (except software engineers/designers) 2154 Land surveyors 2174 Computer programmers and interactive media … Read More
Spot the Difference
For the past several days the Citizenship and Immigration Canada homepage has featured the following happy trio. These guys are certainly doing well for themselves in Canada. As Stephen Fogarty, a Montreal based Canadian immigration lawyer, noted, they’ve even appeared on dentist advertisements in Quebec.
Comparing Working Holiday Programs
Many young people from certain countries around the world are able to come to Canada to work on open work permits for specified periods under the Working Holiday Program (“WHP“). The WHP is a part of the International Experience Canada (“IEC“) program. The IEC also includes other programs such as the Young Professionals Program which require that applicants have pre-arranged employment. What many people don’t realize is that the WHP rules for specific countries vary dramatically. As well, they are changing constantly. So if you see you’re country on the list below, and you notice that the rules for your country are much more stringent than other countries, you may want to lobby your government to negotiate more flexible terms with Canada. Country Age Eligibility Maximum Validity (Months) Frequency of Participation Quota Australia 18-30 24 No limit 8,900 Belgium 18-30 12 Once 750 Chile 18-35 12 Once 725 Costa Rica 18-35 12 Twice in IEC, Once in WHP 70 Croatia 18-35 12 Twice 275 Czech Republic 18-35 12 Twice in IEC, Once in WHP 1,000 Denmark 18-35 12 Once 300 Estonia 18-35 12 Twice in IEC, Once in WHP 80 France 18-35 12 Twice in IEC, Once in WHP … Read More
Applying for a Work Permit at the Port of Entry
Many individuals know that people who are exempt from the requirement to obtain a Temporary Resident Visa can apply for a Work Permit at a Canadian Port of Entry. What many do not realize is that this extends to people from any country who are returning to Canada after a trip to the United States. Specifically, r. 190 of the Immigration and Refugee Protection Regulations states that: (3) A foreign national is exempt from the requirement to obtain a temporary resident visa if they are seeking to enter and remain in Canada solely (f) to re-enter Canada following a visit solely to the United States or St. Pierre and Miquelon, if they (i) held a study permit or a work permit that was issued before they left Canada on such a visit or were authorized to enter and remain in Canada as a temporary resident, and (ii) return to Canada by the end of the period initially authorized for their stay or any extension to it; We have made available for purchase on this blog an internal CBSA Memorandum from March 8, 2007, addressing this issue. The price for this document, which was obtained through an Access to Information and Privacy Act request, is $6.95. Our … Read More
Reliability of CIC Cap Figures
Many immigration programs, including the newly enacted Federal Skilled Trades Program, contain caps on the number of people who can apply. Citizenship and Immigration Canada (“CIC“) generally advises people that they should check the CIC website before submitting applications to make sure that the cap has not been exceeded. Unfortunately, CIC has also (successfully) argued in court that the information on their website is not reliable, and that the CIC website stating that the cap is unfilled does not create a legitimate expectation for applicants that the cap is in fact unfilled. In Agama v. Canada (Citizenship and Immigration), 2013 FC 135, an applicant was denied a permanent resident visa under the Skilled Workers Class (the “FSWC“). Under the FSWC, CIC considered a maximum of 500 applications in National Occupation Classification 0631 (“NOC 0631“) during the relevant year. CIC posted the following information on its website regarding how many NOC 0631 applications it had received: September 28, 2011 – 209 applications October 10, 2011 – 229 applications November 3, 2011 – 330 applications November 8, 2011 – 335 applications December 1, 2011 – 458 applications The applicant filed her application on November 14, 2011. Considering that the CIC website on December 1 … Read More
Should I Do BC PNP or CEC?
After the work experience requirement for the Canadian Experience Class went from two-years to one, many people have been asking whether they should apply for the BC PNP – Strategic Occupations – Skilled Workers program or the Canadian Experience Class. The following table shows some of the issues that applicants should be aware with each application. It was part of a larger table comparing the BC PNP to many federal economic immigration programs which I wrote in a paper for the 2013 Canadian Bar Association – British Columbia Branch Annual Immigration Conference. Issue BC PNP – Skilled Workers CEC Is a job offer required as part of the application? Yes, and the employer must have at least 3-5 employees depending on its location. No. In fact, there is no requirement that the applicant be employed during the processing of the application. If a job offer is required, can the applicant change employers? Not until after nomination, and the BC PNP may withdraw nomination if the new position does not meet program requirements. N/A If a job offer is required, does the employer have to do recruitment? Yes, although if the employee is a TFW the original recruitment is sufficient. N/A … Read More
Voluntary Departures
Fresh off of last week’s report on people who were declared in 2011 to be inadmissible to Canada when they arrived at the Vancouver International Airport, the following chart obtained through an Access to Information and Privacy Act request shows the source countries of people who were voluntarily allowed to leave YVR without being declared inadmissible to Canada. The top 10 countries were: Citizenship 2011 United States 207 Korea 144 China 109 Hong Kong 49 Taiwan 49 Philippines 37 Japan 34 Mexico 28 Australia 26 Germany 30 Israel 18 British 17 India 14 France 11